1. This is a suit by the Zamindar of Polavaram to recover a certain village named Kondamadulu described in Schedule A attached to the plaint, and the forest which formed part of the same village and is described in Schedule B. The plaintiff's case is that the defendant is only a tenant from year to year and that the tenancy has been determined by due notice to quit. The defendant alleges that1 he is a Mokhasadar entitled to a perpetual tenure. He is not a cultivating tenant of the property but an intermediate holder between the Zamindar and the cultivating tenants. The Kabuliat executed by the Zamindar to Government under the permanent settlement, which is Exhibit A, shows that Kondamodulu is not amongst the Mokhasas of which a list is given. There is no dispute in the case that Kondamodulu is included in the Zamindari, although the name does not appear in the list of Jirayati villages given in that document. It is stated for the respondent, and there is evidence in support of the view, that Kondamodulu is only a hamlet of Kondrakota Muttah. Koudrakottah is expressly mentioned in the list of Jirayati villages. Mr. Napier who appeared for the appellant very properly conceded that there is no evidence of the original grant of the Mokhasa to the defendant and it seems to us clear, from Exhibit A, that Kondamodulu was not a Mokhasa at the date of the permanent settlement. It is, whatever the tenure, of the nature of a subordinate interest carved by the Zamindar. When the holder of such subordinate interest contends that it is a permanent tenure, in that the holds, and there is no document on the language of which he relies to make out, such a permanent tenure, the burden is upon him of establishing the permanency of the tenure by other evidence in the case. We are, therefore, to examine the somewhat volu minous evidence that has been adduced in the case on both sides and to find out whether the defendant has made out his plea of a permanent tenure.
[Their Lordships after discussing the evidence in detail went on to observe as follows: - ED]
2. We think we have discussed really all the evidence that has been commented on before us. We have no hesitation in coming to the conclusion that the defendant has utterly failed to show that he had a permanent interest in the property. The only residual fact that may be said to have been established by the defendant is that for a period commencing about the year 1831 and extending to the year 1864, an unvarying rent of Rs. 60 was being paid, though even in this period it appears there were other persons associated with the defendent as joint Ijaradar for some time. We cannot on this fact rest a conclusion of permanent right in the defendant
3. Even if the onus lay upon the plaintiff, we should be inclined to hold that the plaintiff has discharged it and has shown that there is no permanent right in the defendant as regards the suit village.
4. The next point which is associated with this matter and which was raised by Mr. Napier, was that he is entitled to claim an occupancy right under the Estates Land Act. We think this contention completely gives the go-by to the attitude of the defendant and his contention in the court below. His whole case was as to subordinate tenure and not to an occupancy right which a tenant in actual contact with the property may claim, and, therefore, we decline to allow him to raise this contention, nor is there any ground of appeal which raises a case of occupancy right under the Estates Land Act. We are not disposed to allow such a new contention to be raised for the first time in the course of the argument.
5. The next point to which serious attention was directed was about limitation. Now if the Polavaram Zemindar was the owner of the suit village and the defendant's predecessor was only a tenant for each year under the several muchilikas the last of the muchilika having ceased to operate from the year 1878, the question is, in what right did the defendant's grandfather continue to hold the property? We have already adverted to the circumstance that subsequent to the expiry of the last muchilika, Exhibit R9, the defendant's grandfather continued to pay rent to the plaintiff's predecessor and the latter continued to accept it. Exhibit S 1, which is dated 20th February 1880, is clear on the point. Even if we do not take into account the subsequent Irusalnamahs there is no doubt of the fact of payment, and we must presume a tenancy from year to year from the expiry of the muchilika Exhibit R 9. Now in the case of a tenancy from year to year, it is well-settled law that limitation can run in favour of a person who asserts a permanent right in the property only from the date of the termination of tenancy. Article 139 of the Limitation Act is perfectly clear on the point. The tenancy did not determine admittedly, whenever it was, before the year 1896 and 12 years had not run from that date at the date of the institution of the suit. The decisions in Srinivasa Ayyar v. Muthuswami Pillai I.L.R. (1900) M. 246, Sheshamma Shettati v. Chicaya Hegade I.L.R. (1902) M. 507, Ramaswami Naik v. Thayammal I.L.R. (1903) M. 488, are clear upon the point. Mr. Napier drew our attention to three other cases. Sankaran v. Periasami I.L.R. (1890) M. 467 has nothing to do with the point under consideration. There a person who was not holding under a derivative tenure set up a leasehold interest in the property in consequence of the payment by him of a certain amount of porupu for the statutory period under a claim of leasehold interest himself. It was held that he could prescribe for the whole proprietary interestin property of which he holds possession in the assertion of such right. Paramaswaram Mumbanoo v. Krishnan Tengal I.L.R. (1903) M. 535 is really an authority against Mr. Napier. There the learned judges hold that according to the plaintiff's case the tenancy having determined before a period of 12 years and the defendant having been alleged to have been a trespasser in possession for more than 12 years, clearly the period of limitation was 12 years ft on the date of the expiry of the original lease from which the plaintiff alleged the defendant was holding as a trespasser. Now the next case Vadapalli Narasimham v. Dronam Raju Seetharamamurthi I.L.R. (1907) M. 163 deals with altogether a different matter, viz., a case of tenancy by sufferance. That is also an authority in favour of the respondent, for it was there said if a tenant for a period holds over with consent of the landlord, then the tenancy would be one from year to year. It is, therefore, clear upon all the authorities to which our attention was drawn that the suit is not barred by limitation. We agree with the Governor's Agent and dismiss the appeal with costs.